Legal fight continues over Appleton house built on lot neighbors say is too small

Attorney Patrick Mellor (right) speaks before the Appleton Board of Appeals on Tuesday night. Resident Lorie Costigan (left) is one of four neighbors seeking to overturn a variance granted after the fact for the construction of a house. Buy Photo

Appleton Board of Appeals Chairman Stanley Millay said the sole purpose of this past week's hearing was to detail reasons why the board granted a variance. He said the board would not reconsider its previous action. Buy Photo

APPLETON, Maine — The saga of a controversial house built more than four years ago has more twists and turns than the roads of this rural Knox County town.

The dispute over the two-story house and whether it will be allowed to stay standing is expected to return to the court system following a lengthy, sometimes contentious meeting earlier this week of the town’s board of appeals.

Lorie Costigan, one of the neighbors who has waged the legal challenge to the house’s construction, told the board of appeals Tuesday night that its decision to approve a variance for the Appleton Ridge Construction would simply continue the court case.

“You’re punting to the court and on the backs of the citizens of Appleton,” she said.

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Her attorney Patrick Mellor said the case would go back to court and ultimately back before the board when the court overturns the variance, he said.

The controversy surrounds the construction of the house at 99 Searsmont Road, located near the center of Appleton Village.

Jacob Boyington, owner of Appleton Ridge Construction, purchased the 0.18 acre lot from the town for $4,100 at a public auction in August 2008. The town had acquired the lot in 2005 when the previous owner failed to pay the property taxes.

An old mobile home was located on the property but Boyington removed it and then sought a building permit to build the new house. Neighbors Paul and Rita Gagnon as well as Lorie and Patrick Costigan, however, challenged that permit, saying the lot was too small and the building was located too close to the road.

The lot is surrounded by two farms.

The then town code enforcement officer Bob Temple issued the building permit in March 2009 over the objections of the neighbors.

The Costigans and Gagnons first turned to the board of appeals to challenge the granting of the permit but the panel ruled in June that it did not have the authority to overturn the action. The neighbors then filed an appeal of the permit to Knox County Superior Court in June 2009.

Boyington built the house despite the pending court challenge and it was completed later that year. The house is a two-bedroom home that sits atop a residential garage.

Justice Jeffrey Hjem issued a ruling in February 2011 that vacated that permit, ordering the code officer to rescind it.

Temple rescinded the permit and instructed Boyington to remove the house or find a way to legally receive a permit. Boyington had served on the town’s appeals board in 2009 but had left the panel before he applied for a variance from the municipal board. The board granted the variance from the setback requirement in November 2011, again over the objections of the neighbors.

The couples then appealed that ruling to the court. In June, Hjelm did not rule on the merits of the variance but said the appeals board did not adequately explain the reasons for granting the variance and ordered it sent back to the panel to provide what is called “findings of facts.” The judge concluded that the findings previously provided by the board were insufficient for the court to undertake a meaningful review of the town’s action.

At this week’s appeals board meeting, the neighbors and appeals board wrangled over every sentence of those findings.

Appeals Board Chairman Stanley Millay told the neighbors at the outset that he was not going to accept new evidence and that the meeting was only to fully explain the reasonings and that the panel was not going to reconsider whether to grant the variance.

For a variance of a zoning law to be granted, state law requires several conditions. Those conditions are that the land cannot yield a reasonable return unless a variance is granted, the need for the variance is due to the unique circumstances of the property and not the general conditions in the neighborhood, the granting of the variance will not change the character of the neighborhood, and the hardship is not the result of the action taken by the person appealing or the former owner of the property.

The board and the neighbors disagreed at length on each of those points.

Costigan said the lot could have been used for a stand for the sale of blueberries, baked goods or hot dogs and result in a reasonable return. The board argued that those activities would not necessarily offer a reasonable return and that those would have a greater impact on the neighborhood.

The Appleton Ridge Construction home has a 24-foot-by-32-foot footprint and is located 15 feet from the road right-of-way. The town ordinance requires buildings to be 25 feet from the right-of-way.

The neighbors also pointed out that Boyington could have remodeled the structure that had been there and expanded it by up to 30 percent without a variance.

Mellor said that a smaller home could have been built there and that these small homes are in demand by people who want to downsize.

At this week’s meeting, Millay said the appeals board was going to provide the findings of facts and then leave it to the courts. He repeatedly told Mellor and Costigan that he would not accept new evidence and at one point when Mellor was attempting to read some information into the official record, Millay turned off the tape recorder being used to record the meeting.

The legal battle has cost the town $25,100 since it began, according to Donald Burke, the chairman of the Appleton Board of Selectmen.

Donald Burke, the chairman of the select board, said Thursday he would not comment on the merits of the issue.

“The selectmen are not involved in this legal matter. This is playing out in the courts, according to the law,” Burke said. Burke is an uncle to Boyington.

Boyington declined to comment on the matter at the appeals board hearing.

When asked whether the case could end up with removal of the home, Mellor said that might occur. He said there have other cases in Maine where the court has ordered removal of buildings that violated zoning ordinances.